Brexit puts the rights of EU citizens into question … on both sides of the Channel.

The 500 million citizens of the EU are free to travel and live in other Member States. More than 200 million trips are made by residents to another Member State1. These freedoms are granted by EU Treaties. The 2004 Citizens’ Directive2 provides that citizens can travel visa-free, in and out of the territory of any Member State, and have the right to live in any Member State for up to three months before conditions are applied. After living for a continuous period of five years in another Member State, EU citizens have “acquired rights” of permanent residence.

Three million EU citizens may lose their right of residence in the UK as a result of Brexit…

If EU law no longer applies in the UK, this may have serious consequences for citizens. Any tightening of immigration rules and admission conditions adopted by the UK will affect those EU citizens already in the UK and their families, as well as those aspiring to travel to and live in the UK.

Under the current rules, citizens must prove that they have exercised their ‘treaty rights’ for five years in another Member State to gain the right of permanent residence there. Many, however, may not have retained the appropriate records to demonstrate that they meet the criteria for permanent residence - especially in those circumstances where this right is made conditional to a specific status (e.g. student, employed, proof of good financial standing). And even when the criteria are fulfilled, the process of applying for a permanent residence card is cumbersome and lengthy3.

… and more than one million UK nationals living elsewhere in the EU may no longer be able to do so.

UK nationals with “acquired rights” will be able to stay in their host Member State once the UK withdraws from the EU otherwise in the absence of an agreement, UK nationals will have to comply with EU and national rules designed for third country nationals. UK students and researchers may be admitted to an EU Member State under stricter conditions4. For instance, UK students may have to pay higher tuition fees and may have less employment rights during or after their period of study. Skilled and low-skilled UK nationals looking for a job in EU Member States would be subject to national immigration rules, quotas and conditions specific to third country nationals. Highly skilled UK nationals would have to apply for an EU Blue card, or a similar national scheme, to obtain work. In all cases, UK nationals would be able to apply only for jobs where a suitable EU citizen could not be recruited under the Union or Community preference principle, which gives priority to EU citizens over third-country nationals.

The consequences of a poorly-negotiated Brexit deal on EU Citizens and UK nationals are wide ranging

In the absence of a favourable agreement, citizens will have to apply for a specific immigration status under the applicable law. Their access to the right of residence will vary according to their individual circumstances. The effects on the labour market, education system, family life, pension regimes, as well as access to healthcare, social security regimes and public services will be significant.

Three possible scenarios: 4, 3, 2, 1 million … go?

Article 50 of the Treaty5 has now been triggered. EU citizens and UK nationals will retain their rights to travel and live in another EU Member State for at least two years. A transitional agreement is likely to be negotiated if no deal is struck by 2019. Post Brexit, stricter immigration rules and admission conditions will apply on either side.

Three possible outcomes of the negotiations are:

No agreement – EU citizens living in the UK will need to apply for permanent residence, if they meet the eligibility criteria. Those who are not eligible but want to stay will have to apply for a specific immigration status. UK immigration services face the prospect of needing to process a huge number of applications. A large share of the current residents may not be granted a residence permit and will be invited (or worst case forced) to return to their country of origin or another EU Member State. UK nationals living in the EU may face similar challenges. The resulting migration flows of EU citizens and UK nationals could create demographic imbalances on either side of the Channel. For instance UK pensioners leaving Spain for the UK are likely to put a further strain on the demand for health care services and housing. Similarly, active EU citizens leaving the UK would have to find a job on the continent potentially creating staff shortages in specific UK sectors and higher unemployment on the continent.

Unilateral guarantees – The UK government may choose to unilaterally grant residence rights to all EU citizens already living in the UK. Equally, the European Union may choose to do so unilaterally. Any imbalance could affect the citizens of the negotiating party offering the unilateral guarantees, as their own citizens would have to face the stricter residence regime applied by the other party. Citizens not benefiting from the unilateral guarantees will face the consequences as under a no agreement scenario.

Reciprocal guarantees – Reciprocity will protect the interests of some EU citizens already living in the UK and of some of those UK nationals already living in the EU. The question of the length of stay to accede to permanent residence rights would be crucial in deciding who stays in and who has to leave their host country. Other criteria such employment, financial standing or family status will greatly influence the rights of residence.

The earlier the agreement on eligibility criteria for such guarantees the less likely EU citizens and UK nationals will face legal uncertainty. However, this is a highly complex landscape. ICF’s research into migration and mobility-related policies over the past twenty years has advised the European Commission to show:

How well EU policy and legislation on legal migration is working (“Legal Migration Fitness Check”)

The entitlements of non-active intra-EU migrants to special non-contributory cash benefits and healthcare granted on the basis of residence;

The review of the condition of entry and residence in the EU of highly qualified third country nationals (“EU Blue Card Directive”);

The review of the European Union's visa policy to facilitate legitimate travelling (“Visa Code”)

This wealth of insight provides for a strong understanding of the legal, economic and social impact of revising the UK’s or Member State migration and border control regimes.

1. Source: Eurostat - 2011 data. ↩2. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ↩3. The application form is 85 pages long and some of the criteria quite stringent. ↩4. As set out in EU legislation applying to third-country nationals or as part of other bilateral / multilateral exchange schemes for non-EU citizens. ↩5. Treaty on the functioning of the European Union ↩